On May 18, 2011 attorney Eric Deters filed a federal lawsuit against the Bar Counsel and the KBA, seeking a declaratory judgment spelling out his rights.

The lawsuit is pending in the Central Division of the U.S. District Court for Eastern Kentucky. Federal Judge Danny Reeves is presiding over the case.

The main thrust of the lawsuit concerns the denial of consideration of a recusal motion he made against Trial Commissioner Frank Doheny of Louisville. Doheny heard the ethics complaints against Deters and apparently found him guilty on all issues.

Another issue in the lawsuit involves an ethics claim against Deters for a Rule 11 (frivolous pleading) sanction because he incorrectly identified the Agent for Service of Process of a civil action he filed. Deters said the KBA claimed he filed the lawsuit against a Henry Fischer but he only named Fischer as an agent to whom the lawsuit should be served. He says that immediately upon learning that Fischer was not the Agent for Process of the corporation being sued, that he withdrew the designation and named the correct Agent within one day.

During the course of the ethics complaint hearing against Deters, the Trial Commissioner disclosed, after the hearing had started, the fact that his law partner Linda Ash (Dinsmore & Shohl) was representing the complainant who filed the pending complaint against Deters.

Linda Ash is employed by Dinsmore & Shohl in their Cincinnati office and Trial Commissioner Frank Doheny is employed by Dinsmore & Shohl in their Louisville office.

It is generally true that the all members of a law firm would in some manner benefit financially from the fee earned by another law partner of the same firm. Deters claims that Doheny while serving as a Trial Commissioner appointed by the Chief Justice was acting as a Judicial Official, and was subject to the same ethics code by which regular judges are regulated.

Deters alleges in his lawsuit that he charged a client $1500 for legal work he performed, and the client subsequently filed an ethics complaint alleging that Deter’s fee of $1500 was excessive. Deters reports that he offered to go to mediation over the fee and the Bar Counsel rejected mediation. He then says he offered to return the entire $1500 but again the Bar Counsel refused to accept this method of resolving the issue. The KBA continued their ethics prosecution of Deters.

Deters, who is represented in the lawsuit by former gubernatorial candidate Lawrence Forgy of Lexington, alleges that it was disclosed that his Trial Commissioner’s law partner was charging $25,000 for the completion of the legal work Deters had agreed to do for $1500. Yet he says, the Trial Commissioner found that Deters fee was excessive. He states in the federal lawsuit that the Trial Commissioner’s law partner charged 16.6 times what he charged, yet he is charged with asking or an excessive fee for his services.

Procedural rules permit a defendant to file a motion for recusal of any judicial officer with the Chief Justice of the Ky. Supreme Court. Deters filed such a motion but it was returned by the Clerk of the Supreme Court, Susan Clary. Deters then resent his motion for recusal consideration directly to the Chief Justice.

The Chief Justice, John Minton, returned Deters motion identified it as “Filing of Unauthorized Pleadings”.

KRS 26.A.020(1) imposes on the Chief Justice the duty to immediately consider all motions for recusal.

KRS 26A.020 Designation of retired justice or judge as special judge.

(1) When, from any cause, a judge of any Circuit or District Court fails to attend, or being in attendance cannot properly preside in an action pending in the court, or if a vacancy occurs or exists in the office of circuit or district judge, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately designate a regular or retired justice or judge of the Court of Justice as special judge. If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. Any special judge so selected shall have all the powers and responsibilities of a regular judge of the court.

(2) A retired justice or judge serving as a special judge shall be compensated as provided by KRS 21A.110.

History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 22, sec. 5

Deters reports that he had no further communication from the Chief Justice, and assumes that the Chief Justice did not consider his recusal motion. It is possible that the Chief Justice read the motion for recusal and has chosen not to disclose his answer. In any event the Trial Commissioner was not recused, and now Deters is asking a Federal Court to rule on the recusal issue.

The Chief Justice is granted almost unlimited discretion to deny a motion for recusal, but KRS 26A.020 , the foregoing statute, clearly states that he must at least consider all such motions. Deters argues that his recusal motion was not considered by the Chief Justice.

The Federal lawsuit also questions the action of the Kentucky Supreme Court in creating a “rule” that grants absolute immunity to Bar Officials. Prosecutors in Kentucky criminal courts only have qualified immunity from civil actions.

In the lawsuit Deters seeks relief from the Federal court on the following issues:

1. An Order or Declaratory Judgment that Kentucky Bar Counsel and it’s lawyers can’t be granted absolute immunity by a Supreme Court Rule and clarification whether Bar Counsel can be held responsible under a Rule 11 motion.

2. An Order of Declaratory Judgment that Kentucky Recusal Rules as they apply to a Trial Commissioner of a Tribunal Hearing are unconstitutional because they violate due process in that they do not give Plaintiff and others similarly situated with a fair hearing if a conflict or other basis for recusal arises at any time past the ten days after the Trial Commissioner’s appointment.

The Deters lawsuit seeks relief under the Federal Civil Rights act known as a Section 1983 action. He does not seek personal damages against the Bar Counsel, but under a l983 action he can be awarded costs and attorney fees if he is successful.

LawReader is advised that the Judicial Budget provides for malpractice insurance to cover any awards granted against the State Judiciary by a Federal Court.

The pending action before the KBA continues. The Trial Commissioner found against Deters and recommended a very harsh period of a six month and one day suspension against Deters even though the Bar Counsel only asked for a 60 day suspension. Deters states in his complaint that this action of the Trial Commissioner proves his bias against Deters and supports Deters claim that the Trial Commissioner should have been recused from hearing his case.